To speak or not to speak?

The Fifth Amendment to the U.S. Constitution provides the right against self-incrimination in criminal proceedings. In Miranda v. Arizona (384 U.S. 436, 1966), the U.S. Supreme Court determined that suspects in a custodial interrogation by the government should be provided information about four safeguards of this right: the right to remain silent, that anything you say can be used against you in a court of law, the right to the presence of an attorney and that an attorney will be appointed for you if you cannot afford one.

In the Miranda decision, the Supreme Court emphasized that the right to an attorney during interrogation is the cornerstone of the protection against self-incrimination. If questioning proceeds without an attorney present after the suspect is "Mirandized," the government must demonstrate that the suspect knowingly and intelligently waived the right to counsel. If that waiver cannot be proved, then any incriminating statements made by the suspect should be excluded from trial.

In Florida v. Powell (No. 08-1175, ruling below at 998 So.2d 531), the Supreme Court will consider the content of the right to an attorney warning. Powell, a convicted felon, was arrested for illegal possession of a firearm and was read Miranda warnings informing him he had the right to an attorney before questioning and that he could assert his Miranda rights at any time. The warning did not specify that he had the right to counsel during questioning. The Supreme court must determine whether failure to provide explicit warning about the right to counsel during questioning is inconsistent with the spirit of Miranda and whether Miranda warnings that only include an explicit right to an attorney before questioning and the ability to invoke that right at any time are invalid. The underlying question is whether a reasonable person informed of the right to an attorney before questioning would think he did not have the right to counsel during questioning.

Surprisingly, there is no standard Miranda warning. Miranda warnings must advise suspects of their rights, and they must not be misleading regarding the suspect's rights. Within these parameters, psychological research has demonstrated that there are hundreds of variations on the warnings. The warnings vary widely in content, reading level (between fourth and college level) and length. The warnings can be given either in writing or orally. Courts are mixed in their opinions on whether the warning has to explicitly include the right to counsel during questioning, as is the issue in Powell. Some courts have required specific advisement of the right to counsel during the interview and others have said advisement of the "right to an attorney" is enough. Other courts have stated that a warning that includes only the right to an attorney before questioning might mislead the suspect into thinking he or she did not have the right to counsel during interrogation.

A large body of psychological research on Miranda warnings has investigated the reading level and comprehensibility of the language in the warnings and demonstrates that comprehension of the warnings is very low. Comprehension is worse for juveniles, mentally disordered offenders, people with low IQ and when the warnings are translated into other languages. Researchers recommend simplifying the warnings, but research indicates that even simplified warnings are poorly understood. The right to have an attorney appointed is the most poorly understood of the rights. Prior experience of being "Mirandized" does not increase understanding of the warnings. Research also indicates that oral warnings are less understood than written ones.

This research could inform the Supreme Court's decision in this case. Powell may not have understood his rights, the oral reading of the rights could have decreased his understanding and his experience with the legal system may not have increased his understanding.

Research on how suspects interpret varying content in the warnings would be most informative in this case and others like it. Research on the warnings typically uses language similar to the Miranda opinion. Little research has looked at whether varying the warnings' content might improve suspects' understanding of the warnings or change their decisions to waive their rights. Given the wide variability in Miranda warnings, psychologists could provide great assistance to the legal system by conducting research on how these variations affect suspects' abilities to knowingly and intelligently waive these rights. Research on specific Miranda content will inform future policies about what makes the information provided in the warning complete and unambiguous.

"Judicial Notebook" is a project of Div. 9 (Society for the Psychological Study of Social Issues).